Demystifying the H-1B Process What Higher Education Supervisors Need to Know
Visa vs. Status What is the difference? Visa gives a foreign national the right to request legal entry to the United States in a particular status. Status defines allowable activities: studying, working, volunteering, etc.
Types of Status in Higher Ed Students in F-1 status, including CPT and OPT Students, Professors, Research Scholars in J-1 status Staff and Faculty in H-1B, TN, O-1, or E-3 status EAD card holders including J-2, L-2, E-3D, and DACA (Dream Act) Permanent Residents (Green Card holders)
H-1B Philosophy H-1B allows the temporary employment of qualified individuals who are not otherwise authorized to work in the United States. Employers may hire nonimmigrant aliens in specialty occupations, defined as those that require specialized knowledge and the attainment of at least a bachelor s degree or its equivalent. The H-1B program is complex, with multiple regulations intended to protect both U.S. and nonimmigrant workers.
H-1B Advantage: Dual Intent Most nonimmigrant classifications require aliens to prove they do not intend to immigrate permanently to the United States. Initiating a U.S. permanent residence application can jeopardize the foreign national s visa status. The H-1B category, however, allows "dual intent." The foreign national can continue in a nonimmigrant status even though steps may have been taken towards obtaining U.S. permanent residence.
H-1B Basics Employer-sponsored. Up to 3 years per filing and 6 years total unless a petition for permanent residency has been filed. Job must require specialized knowledge or training, and a bachelor s degree or higher. Beneficiary must hold required degree or foreign equivalent at time of application. Employer must meet local prevailing wage and internal equity requirements. Dual-intent allowed. May apply for Permanent Residency. Universities are not subject to the annual cap on hiring.
H-1B Process: Fees and Timeline Sponsoring department should start early. The process can take up to 6 months to complete. Cost and time considerations make 3-year filing desirable, but funding uncertainties may require shorter H-1B periods. Required fees: $325 application fee (all H-1Bs) $500 for new H-1B or transfer Premium Processing costs an additional $1,225 and guarantees USCIS case resolution within 10 business days.
Prevailing Wage Job will be benchmarked to the Department of Labor Occupational Information Network (O*NET) site to match duties, education and experience required for the job. Once a match has been found, a search of the Foreign Labor Data Center Online Wage Library is done to get Prevailing Wage for one s area. This salary data is updated annually. The Prevailing Wage must next be compared with employees in similar jobs for internal equity purposes. Step 3
H-1B Process: LCA Filing A Labor Condition Application (LCA) will be filed with the Department of Labor for the employer information, salary, FTE, job title and dates of work. The LCA contains no beneficiary information and is solely for the purpose of verifying appropriateness of salary and working conditions. University must post notice of filing the LCA for two weeks. LCA Approval (certification) takes 1-2 weeks. During this time, the petition cannot be filed.
After LCA certification email is received, the LCA and petition forms can be signed. H-1B Petition Petition packet is copied, filing fees attached, and the packet is mailed to USCIS. Overnight courier is strongly recommended for speed and tracking purposes. If Premium Processing is requested, USCIS will send an email upon receipt. With regular processing, there will be no communication that the packet has been received unless a courier service was used.
H-1B Process: RFE and Approval USCIS may request additional information. This is known as a Request for Evidence (RFE). The request is often very detailed, requiring additional internal and external benchmarks and more specific information about the beneficiary. Official approval notice will be sent by regular mail in 1-2 weeks or via express courier if the department provided an return label. With Premium Processing, USCIS will send email when case decided, but this is a courtesy only and not official approval. Beneficiary should be given a copy of their filed packet, their original I-797 and a letter detailing terms of their H-1B status. Employee should update their I-9 form based upon the new H-1B approval.
Types of H-1B Processing Consular New Employment (already in US) Extension/Amendment Transfer (Portability)
Consular Processing Takes the longest. Beneficiary must schedule meeting at the consulate; appointments not always easy to get. Beneficiary might not be using same consulate as city/country of origin. Cannot begin working before first day of status Upon arrival in the U.S. beneficiary will find a place to live, get an SSN, driver s license, etc., which can delay start date.
New to H-B but Already in U.S. In higher education, a status change is typically OPT to H-1B, but not always. Salary increase is often required in order to meet prevailing wage requirements. Coordinate dates closely. H-1B approval notice must be received before beneficiary can work.
Extension/Amendment Can begin working under new terms as soon as petition received by USCIS. On extension, the main reason for filing date concern, other than employment gaps, may be driver s license or financial matters such as a mortgage. Beneficiary should not travel while a petition is in progress.
H-1B Portability Portability allows an H-1B holder to be sponsored by a new employer. This is often referred to as a transfer. A transfer petition must be received by USCIS prior to the beneficiary s first day of work under new terms. Coordination between employers must be precise. An H-1B cannot have gaps in employment. Leave without pay can be used to close employment gaps, but beneficiary must request it in writing.
Other H-1B Considerations Any change in employer, duties, working conditions, or FTE requires filing an amendment. Salary changes must also be filed if the new salary is lower than previous. If the changes constitute promotion or salary change, additional HR approvals may be needed. USCIS will not accept petitions filed over 6 months in advance of the requested start date. More than one H-1B petition may be in effect, allowing the beneficiary to work concurrently for multiple employers. If employment terminated before end of the H-1B period, the department must offer to pay beneficiary s return to home country.
Spouses of H-1B Workers Filing on behalf of a spouse is handled differently by different employers. There is no legal obligation to assist in the process and there are potential pitfalls: University is spending time and money on legal matters pertaining to a non-employee. Errors could create problems for the employee and his/her family. Prior to this year, a dependent spouse of an H-1B could not work. Recent changes make H-4 spouses eligible for an EAD card if the H-1B worker has an approved permanent residency application.
Permanent Residency Most universities will consider sponsorship only when there is a strong likelihood of continuing employment at the university. Sponsorships are complex, and require a significant commitment of time and resources. Faculty: Sponsorship of full-time, tenure-track faculty is fairly common, since tenured faculty are usually long-term. Research: The specific nature of some types of research may make sponsorship desirable if the alternative is to lose the employee. Staff: One must demonstrate that no citizens or existing permanent residents can fill the job. Once they have their green card, there is no reason for a permanent resident to stay if a higher salary is available in the corporate world.
Permanent Residency Timing is everything. It can take well over a year to get a PERM sponsorship filed. If the beneficiary s H-1B expires before their PERM is accepted, they will have to leave the country. Once their PERM has been approved, it will be another wait for a green card opening to become available. For countries with many applicants, such as India and China the wait can be as long as ten years. An H-1B status can be extended beyond the 6-year maximum if the PERM has been accepted. H-1B time can also be recovered. Any time spent out of the country (visits home, vacations, etc.) can be documented and added to an H-1B extension.
Other Income While in H-1B Status Honorarium: Persons in H-1B may only receive an honorarium if sponsored by the host institution Expense Reimbursement: H-1B may accept reimbursement for costs associated with brief speaking engagements. Summer Employment: Faculty may work a summer teaching or research job only if it is at their host institution and in full alignment with their usual duties. Royalties: An H-1B who has a book or invention may accept associated royalties.
The I-9 Form The I-9, or Employment Eligibility Verification form is required of all employees by federal law. This law has been in effect since 1986. The form s purpose is to verify the employee s identity and employment authorization, thereby protecting the university from fines and other legal consequences of employing an undocumented worker.
I-9 Documents The most current list of acceptable documents is on USCIS.gov. These are the only documents that can be accepted as proof of identity and work eligibility. Federal law requires that all documents be original and unexpired. The only exception is the new I-94, which is now issued online. In addition to the list of acceptable documents, foreign nationals must show original documentation of their status (F-1, H-1B, etc.).
I-9 Documents The approval notice is the only acceptable H-1B document or I-9 purposes. Okay to use previous H-1B approval for transfer. In the margin, note H-1B portability and the filing date of new H-1B. Update must be done as soon as new approval is received.
Immigration Audits USCIS randomly audits employers across the United States. A late or incorrect I-9 can result in a fine to the university. Fines are $1,500 on average, per violation. If persons are found to be working without valid authorization, fines increase. Criminal penalties can be leveraged against employers, and these penalties can include jail time. H-1B irregularities can result in fines and criminal penalties. If they are sufficiently egregious, the USCIS may suspend or cancel the university s H-1B program.
Internal Audits Audits help protect the university, the foreign national employee and persons in the employing department. It is recommended that the employer conduct regular audits of: Work authorization expirations H-1B work assignment compared to filed petition with USCIS Temporary SSNs (if used) Faculty whose regular summer assignment was part of H-1B filing will need closer attention.
Recruitment Considerations Have all applicants attest to whether or not they require sponsorship. Conduct prevailing wage review before making an offer to an H-1B. Offer letter must contain statement that employment is conditional upon maintaining valid work status. Match start date to allowable employment date: Date of petition receipt by USCIS if H-1B transfer, extension, or amendment Date on or after receipt of original document proving work eligibility I-797
General Data Considerations At hire, verify that job is allowable per visa: H-1B: Check dates on I-797, and check the job title, FTE, salary and department on the H-1B petition. Regularly audit H-1Bs for salary, title, FTE. At termination, audit for voluntary nature of the separation or that status had ended. If employee is leaving prior to status end, document that a plane ticket was offered.
Compensation Considerations If prevailing wage is 10% or more above pay for same job in department, a more in-depth review of department pay practices may be required, because one cannot not pay prevailing wage to the H-1B employee. Check visa status of anyone put through for a reclassification, unless the job does not require a Bachelor s degree or higher. Do not approve any salary reduction, job change or FTE change for an H-1B until an amendment has been filed and approved by USCIS.
Questions?
Thank You! Ann M. Pino Manager, Employee Services University of Houston apinoi@uh.edu